Sunil Kumar Gupta Vs. Smt. Shalini Gupta - Court Judgment

Servesh Kumar Gupta, J.

1. By way of this Criminal Miscellaneous Application, the prayer has been made to quash the judgment and order dated 1.12.2007 passed by the Special Judicial Magistrate II, Dehradun in Miscellaneous Case No. 5/2007, titled as Smt. Shalini Gupta v. Sunil Gupta. It has also been further prayed to quash the judgment and order dated 20.8.2008, passed by the Additional District Judge/F.T.C.-II, Dehradun in Miscellaneous Criminal Appeal No. 5/2008, titled as Sunil Gupta v. Smt. Shalini Gupta.

2. Having heard the learned Counsel for the parties and on perusal of the materials on record, it appears that Smt. Shalini Gupta was wedded with Sunil Gupta on 18.11.1986 as per Hindu customs and rituals. Out of the said wedlock, two children, namely, Km. Ankita and Master Mridul Gupta were born. Both children are residing with Smt. Shalini Gupta, whose relations with her husband Sunil Gupta became sour with the result that a petition no. 587/2002, under Section 9 of the Hindu Marriage Act, was filed by Smt. Shalini Gupta against her husband for restitution of conjugal rights. Husband Sunil Gupta filed a counter-claim under Section 13 of the Hindu Marriage Act claiming divorce from her. This petition was adjudicated by the Judge, Family Court, Dehradun vide judgment and order dated 16.4.2007, whereby the claim of Smt. Shalini Gupta under Section 9 of the Hindu Marriage Act was rejected, while counter-claim of the husband under Section 13 of the said Act was accepted and the marriage between the duo was annulled.

3. Being aggrieved, Smt. Shalini Gupta filed First Appeal No. 19/2007 before this Court against the aforesaid judgment and order, wherein challenge was made by her only to the decree of annulment of the marriage. She did not challenge the dismissal of the petition filed by her under Section 9 of the Hindu Marriage Act. This appeal was adjudicated by a Division Bench of this Court vide judgment and order dated 28.8.2008, which was a conditional order to the effect that if Sunil Gupta pays rupees fifteen lakhs as onetime lump sum amount towards permanent alimony within a period of 45 days, the appeal filed by Smt. Shalini Gupta shall stand dismissed and the decree of divorce passed by the trial court will be deemed to have been affirmed, otherwise the appeal shall stand allowed and the decree of divorce passed by the trial court on counter-claim of Sunil Gupta shall stand set aside.

4. Against the aforesaid judgment and order of this Court, Sunil Gupta preferred a Special Leave Petition (Civil) bearing no. 25999/2008 before the Hon’ble Apex Court, on which the Apex Court stayed the operation of the order for payment of rupees fifteen lakhs, subject to the payment of maintenance @ rupees seven thousand per month to Smt. Shalini Gupta, as was once ordered by this Court vide order dated 8.7.2008 in Criminal Revision No. 121/2008 titled as Sunil Gupta v. Smt. Shalini Gupta. This Court has been apprised that maintenance @ rupees seven thousand per month is being paid regularly by the husband to his divorced wife Smt. Shalini Gupta in compliance of the said order of this Court.

5. Just after the lapse of almost one and half month after the judgment of the Family Court (supra), Smt. Shalini Gupta launched another round of litigation against her husband under the Protection of Women from Domestic Violence Act, 2005 (Act No. 43 of 2005) (For short, the Act of 2005) by moving an application (Miscellaneous Case No. 5/2007) in the court of Chief Judicial Magistrate, Dehradun seeking the direction to her husband to provide the same level of alternative accommodation for her and her children as enjoyed by her husband in the shared household, besides a maintenance of rupees six thousand per month.

6. The aforementioned Miscellaneous Case No. 5/2007 was decided by the learned Special Judicial Magistrate-II, Dehradun vide the impugned judgment and order dated 1.12.2007, whereby Smt. Shalini Gupta was granted rupees two thousand per month as rent in lieu of residential accommodation so that she could comfortably manage her separate abode. This order was challenged by Sunil Gupta by filing the Miscellaneous Appeal No. 5/2008, which was dismissed by the learned Additional District Judge vide the judgment and order dated 20.8.2008, and thus the order of the Magistrate was confirmed. Hence, feeling aggrieved with the order of the Magistrate dated 1.12.2007 nay with the order dated 20.8.2008 passed by the learned Additional District Judge, this petition has been filed.

7. Learned Counsel for the applicant has placed reliance upon judgment of three-Judges Bench of the Hon’ble Apex Court delivered in the case of B.P. Achala Anand v. S. Appi Reddy and Another, reported in (2205) 3 SCC 313, wherein the Hon’ble Apex Court in paragraph 35 has observed as under:

“So far as a deserted wife, whose status as wife has not come to an end by a decree of divorce or by decree for annulment of marriage, is concerned, we have made the position of law clear as above. However, the case of a divorced wife stands on a little different footing. Divorce is termination of matrimonial relationship and brings to an end the status of wife as such. Whether or not she has the right of residence in the matrimonial home, would depend on the terms and conditions in which the decree of divorce has been granted and provision for maintenance (including residence) has been made. In the event of the provision for residence of a divorced wife having been made by the husband in the matrimonial home situated in the tenanted premises, such divorced wife too would be entitled to defend, in the eviction proceedings, the tenancy rights and rights of occupation thereunder in the same manner in which the tenant-husband could have done and certainly not higher or larger than that. She would be liable to be evicted in the same manner in which her husband as tenant would have been liable to be evicted.”

8. Needless to mention that it is an admitted case that the parties are living separately since 1997. Furthermore, in the instant case, the status of Smt. Shalini Gupta is of a divorced wife. Now, no matrimonial relationship exists between the parties. Their marriage stood annulled. So, her status cannot be equated with that of an “aggrieved person” as envisaged in the provisions of Section 2(a) of the Act of 2005. In the decree of divorce, no mention was made by the learned Judge, either in the trial or in appeal, regarding the provision of residence of Smt. Shalini Gupta by her husband either by way of rent, as she was residing separately, or in the same shared household. All that was granted to her was the maintenance to the tune of rupees seven thousand per month, which includes all her expenses including the residence.

8. So, in view of the above, since Smt. Shalini Gupta, though had been in the domestic relationship with Sunil Gupta, but that relationship has been legally broken by a decree of annulment of marriage passed by a competent court having jurisdiction over the matter, which stands affirmed by this High Court, hence, the status of Smt. Shalini Gupta cannot be equated with a woman who has been in a domestic relationship as envisaged in the definition provided under Section 2(a) of the Act of 2005. Therefore, she cannot be said to be an “aggrieved person” with the result that the right of alternative accommodation from her erstwhile husband, in the shared household or by way of rent for the same, is not available to her.

9. For the reasons recorded above, this petition has force and the impugned judgments and orders warrant interference by this Court and the same are liable to be quashed. Accordingly, the petition is allowed. The judgment and order dated 1.12.2007 passed by the learned Special Magistrate-II, Dehradun as well as the judgment and order dated 20.8.2008 passed by the learned Additional District Judge/F.T.C.-II are hereby quashed.

10. Registry is directed to inform the court concerned accordingly.